The spy who notified me: Six-love to amaBhungane in the RICA Constitutional Court case

I wrote a piece on the seminal victory for amaBhungane in its RICA and bulk surveillance challenge for Daily Maverick – published here The case itself is available here and the High Court’s decision (which was essentially upheld) can be read here

It’s also available on amaBhungane’s website here

Lavanya Pillay from my team and I acted for amaBhungane and Sam Sole, assisted by three fantastic counsel – Steven Budlender SC, Stuart Scott and Itumeleng Phalane.

Here’s my piece. I think my original suggested headline was nice (the subs didn’t) – The spy who notified me (post-surveillance notification has been carved into our law).

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More media law podcasts – disinformation and surveillance

Following the release of the very popular open justice podcast (episode 1), you can now listen to episodes 2 and 3. Listen to all the episodes here or on Spotify or Apple.

In episode 2, I discuss disinformation and whether legal regulation is required, with William Bird of Media Monitoring Africa. This was recorded before the COVID-19 disaster declaration – we now have, of course, a crime of publishing fake news about COVID-19. See my previous blog on that crime here.

Then, in episode 3, I discuss unlawful surveillance – especially of journalists – with Sam Sole of amaBhungane, and Prof Jane Duncan, an expert in the field. You can read Sutherland J’s famous judgment in favour of amaBhungane and Sam in their challenge to RICA here and my blog on his judgment here. We eagerly await the Constitutional Court’s ruling in the confirmation application, heard on 25 February 2020. Incidentally, COVID-19 brought its own surveillance legislation – in the form of the track and trace regulations; read about them in my blog here.

Episode 4 – to be released next Wednesday – is on media ethics, with the Press Ombudsman Pippa Green, and Prof Glenda Daniels. And we end the series the following Wednesday with the final episode where my guests are Thandeka Gqubule-Mbeki and Prof Anton Harber. We take a deep dive into their defamation case against the Economic Freedom Fighters.

Hope you enjoy – and stay safe!

COVID-19 and location surveillance

Given the rapid spread of COVID-19 infections around the world and in our country, the South African government has had to act quickly to pass regulations under the Disaster Management Act, to regulate aspects of our lives as we fight the pandemic.

One of the more interesting of the regulations now passed deals with “track and tracing”, which is essentially the ability of the government to compel the mobile phone operators to share location data of those who have COVID-19 so that their contacts can be traced and tested.

Of course any form of surveillance of our personal data should raise constitutional eyebrows, and location information is no different. But given the importance of contact tracing to arrest the spread of the disease, and thus ultimately save lives, is this kind of law permissible during the pandemic? More specifically, what safeguards are necessary for such a law to pass constitutional muster?

Lavanya Pillay, an associate who works with me, and I grappled with this issue in a recent article in Daily Maverick – here.

I reproduce the article below: we ultimately conclude that the regulations are in may respects a fairly good attempt to balance privacy and the compelling government objective involved – they contain 9 essential safeguards to minimise the privacy invasion, including post-surveillance notification (which amaBhungane argued so vociferously for in the recent RICA constitutional challenge: read more about that in my blog on the Pretoria High Court’s decision here. The Constitutional Court’s decision is eagerly awaited). And Justice Kate O’Regan – retired Constitutional Court judge and one of our constitutional rock stars – has been appointed as the “designated COVID-19 judge” to oversee the implementation of the regulations in so far as the right to privacy is concerned – a bold and important appointment.

The article follows below:

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Snowden, Sam Sole, Sutherland and Surveillance

This week, the Pretoria High Court handed down a momentous decision on South Africa’s surveillance laws that made international headlines. You can read the judgment here: http://www.saflii.org/za/cases/ZAGPPHC/2019/384.html

Indeed, in response to a tweet by Privacy International about the judgment, the best known modern whistleblower in the world, Edward Snowden, tweeted, ‘Wow’.

The decision has – at least for now – outlawed bulk surveillance in South Africa, and also declared a number of provisions in South Africa’s legislation permitting surveillance – known as RICA – unconstitutional. Next step is the Constitutional Court.

I was lead attorney in the case for the applicants, the investigative journalists at amaBhungane, and Sam Sole, its co-managing director, who was placed under surveillance in 2008 simply for doing his job. Sam’s take on the case, an excellent read, is available here: https://www.dailymaverick.co.za/article/2019-09-18-analysis-inside-amabhunganes-landmark-ruling-on-surveillance/

Here’s my summary of the case below, which was published in Business Day this week here: https://www.businesslive.co.za/bd/opinion/2019-09-17-landmark-rica-ruling-impresses-even-ultimate-whistle-blower-edward-snowden/

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